United States District Court, S.D. Florida
A & M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff,
GEICO GENERAL INSURANCE COMPANY, Defendant.
ORDER ON MOTION FOR CLASS CERTIFICATION
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff's
Motion and Memorandum in Support of Class Certification, ECF
No.  (“Motion”). The Court has carefully
considered the Motion, all supporting and opposing filings,
the relevant authority, and is otherwise duly advised in the
premises. For the reasons that follow, the Motion is granted.
A&M Gerber Chiropractic LLC (“Plaintiff”)
filed a Complaint, since amended, in the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County,
Florida, which GEICO then removed to this Court. Plaintiff is
a legal entity that provided medical treatment to an
individual named Conor Carruthers (“Carruthers”)
for injuries Carruthers sustained in an automobile accident.
See ECF No.  (“Amended Complaint”)
¶ 13. Carruthers is a “contracting party and/or
named insured” on an insurance policy issued by GEICO
(“Policy”), and in exchange for treatment,
Carruthers “assigned all benefits under the subject
policy to Plaintiff.” Id.
to Plaintiff, GEICO pays Policy claims pursuant to the fee
schedule permitted by Fla. Stat. § 627.736(5)(a) and
GEICO's endorsement, FLPIP (01-13)
(“Endorsement”). See Id. ¶¶ 7,
10. Under the Endorsement, GEICO states that “[a]
charge submitted by a provider, for an amount less than the
amount allowed above, shall be paid in the amount of the
charge submitted.” Id. ¶ 10.
Notwithstanding this Endorsement, Plaintiff alleges that
GEICO pays only 80% of the billed amount when the charge
submitted by the provider is less than the fee schedule
amount. See Id. ¶ 11. In this case, Plaintiff
billed GEICO for services less than the amount payable under
the elected fee schedule, and pursuant to the Policy and
Endorsement, GEICO paid 80% of the charge submitted. See
Id. ¶ 14. Plaintiff pleads that pursuant to its
interpretation of the Policy and Endorsement, GEICO paid an
incorrect amount, a practice GEICO allegedly employs on a
wide-spread scale. See Id. ¶¶ 11, 21. As
such, Plaintiff seeks a declaratory judgment from this Court
on behalf of itself and a class of individuals, asking the
Court to “interpret[ ] Florida Statute 627.736 and the
insurance Policy issued by GEICO” and declare that
“Defendant's Policy requires payment of 100% of the
billed charges for all charges submitted under the Policy
that are below the fee schedule amount.” Id.
at 12. Plaintiff “does not assert a claim for any
monetary relief, ” but rather, requests that the Court
enter an order requiring notice to class members and grant
attorneys' fees and associated costs. See Id.
now asks the Court to certify this action as a class action
pursuant to Federal Rule of Civil Procedure 23(a) and
23(b)(2), appoint class counsel under Rule 23(g), and appoint
Plaintiff as a class representative. See ECF No.
. In response, Defendant argues that Plaintiff has failed
to demonstrate that class certification is proper, requiring
the dismissal of this action for lack of subject matter
jurisdiction. See ECF No. . Plaintiff's
timely reply followed. See ECF No. .
courts have broad discretion in deciding whether to certify a
class. Washington v. Brown & Williamson Tobacco
Corp., 959 F.2d 1566, 1569 (11th Cir.1992). To certify a
class action, the named plaintiffs must have standing, and
the putative classes must “satisfy an implicit
ascertainability requirement, the four requirements listed in
Rule 23(a), and the requirements listed in any of Rule
23(b)(1), (2), or (3).” Karhu v. Vital Pharm.,
Inc., 621 F. App'x 945, 946 (11th Cir. 2015) (citing
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304
(11th Cir. 2012)); see Fitzpatrick v. General Mills,
Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he
putative class must meet each of the four requirements
specified in [Rule] 23(a), as well as at least one of the
three requirements set forth in [Rule] 23(b).”);
Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d
1228, 1233 (11th Cir. 2000) (“A class action may be
maintained only when it satisfies all of the requirements of
Fed.R.Civ.P. 23(a) and at least one of the alternative
requirements of Rule 23(b).”). “Under Rule 23(a),
every putative class first must satisfy the prerequisites of
numerosity, commonality, typicality, and adequacy of
representation.” Vega v. T-Mobile USA, Inc.,
564 F.3d 1256, 1265 (11th Cir. 2009) (citing Fed.R.Civ.P.
23(a); Valley Drug Co. v. Geneva Pharms., Inc., 350
F.3d 1181, 1187-88 (11th Cir. 2003)). Plaintiff has chosen to
proceed under Rule 23(b)(2), pursuant to which a class action
may be maintained if “the party opposing the class has
acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” Fed.R.Civ.P. 23(b)(2).
burden of establishing these requirements is on the plaintiff
who seeks to certify the suit as a class action.”
Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th
Cir.1997); see also Rutstein, 211 F.3d at 1233. The
moving party “must affirmatively demonstrate his
compliance” with the class certification requirements.
Comcast Corp. v. Behrend, --- U.S. __, 133 S.Ct.
1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v.
Dukes, ---U.S. __, 131 S.Ct. 2541, 2551 (2011)). That
is, “a party must not only be prepared to prove that
there are in fact sufficiently numerous parties,
common questions of law or fact, typicality of claims or
defenses, and adequacy of representation, as required by Rule
23(a) [but also] satisfy through evidentiary proof at least
one of the provisions of Rule 23(b).” Id.
(emphasis added). “A district court must conduct a
rigorous analysis of the Rule 23 prerequisites before
certifying a class.” Vega, 564 F.3d at 1266
(quoting Castano v. Am. Tobacco Co., 84 F.3d 734,
740 (5th Cir. 1996)).
is well-settled in the Eleventh Circuit that prior to the
certification of a class, and before undertaking an analysis
under Rule 23, the district court must determine that at
least one named class representative has Article III standing
to raise each class claim.” In re Terazosin
Hydrochloride Antitrust Litig., 220 F.R.D. 672, 679
(S.D. Fla. 2004) (citing Wolf Prado-Steiman v. Bush,
221 F.3d 1266, 1279 (11th Cir. 2000)); Griffin v.
Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987)
(“[A]ny analysis of class certification must begin with
the issue of standing.”)). Indeed, “[o]nly after
the court determines the issues for which the named
plaintiffs have standing should it address the question
whether the named plaintiffs have representative capacity, as
defined by Rule 23(a), to assert the rights of others.”
Griffin, 823 F.2d at 1482. “To have standing,
a plaintiff must show (1) he has suffered an injury in fact
that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to conduct of the defendant; and (3) it is
likely, not just merely speculative, that the injury will be
redressed by a favorable decision.” Kelly v.
Harris, 331 F.3d 817, 819-20 (11th Cir. 2003).
does not challenge Plaintiff's individual standing.
However, Article III standing is a threshold jurisdictional
issue, which the Court must itself address at the onset.
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974
(11th Cir. 2005) (citing Dillard v. Baldwin County
Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000)).
Here, the named Plaintiff, as an assignee of Carruthers,
alleges it suffered cognizable injuries in the form of
reduced payments when it submitted claims to GEICO seeking
reimbursement for medical services, which were billed at a
rate lower than the elected fee schedule, and GEICO, in turn,
reduced the reimbursement rate using the explanation code BA.
Plaintiff's individual standing requirement is,
a district court may grant a motion for class certification,
a plaintiff seeking to represent a proposed class must
establish that the proposed class is ‘adequately
defined and clearly ascertainable.'” Randolph
v. J.M. Smucker Co., 303 F.R.D. 679, 684 (S.D. Fla.
2014) (quoting Little, 691 F.3d at 1304 (citing
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.
1970))). “An identifiable class exists if its members
can be ascertained by reference to objective criteria.”
Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F.
App'x. 782, 787 (11th Cir. 2014) (citing Fogarazzo v.
Lehman Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)).
These “objective criteria” should be
“administratively feasible, ” meaning that the
identification of class members should be “a manageable
process that does not require much, if any, individual
inquiries.” Id. (citation omitted) (reversing
district court decision finding ascertainability satisfied
where class could be identified by reference to the
defendant's records). If a plaintiff fails to demonstrate
that the putative class is clearly ascertainable, then class
certification is properly denied. See Walewski
v. Zenimax Media, Inc., 502 F. App'x 857, 861 (11th
Cir. 2012) (affirming denial of class certification because
class was not adequately defined or clearly ascertainable);
Perez v. Metabolife Int'l, Inc., 218 F.R.D. 262,
269 (S.D. Fla. 2003) (“A court should deny class
certification where the class definitions are overly broad,
amorphous, and vague, or where the number of individualized
determinations required to determine class membership becomes
too administratively difficult.”).
Motion and the Amended Complaint, Plaintiff identified the
proposed class as follows:
All health care providers who submitted claims for no-fault
benefits under PIP policies to which Endorsement FLPIP
(01-13), and any subsequent policies with substantially
similar language that were in effect since January 1, 2013,
where GEICO ...